Public Bill Committee

[Mr Hywel Williams in the Chair]

Clause 4

Amendment proposed (this day): 27, in clause 4, page 8, line 33, at end insert—

Question again proposed, That the amendment be made.

Hywel Williams: I remind the Committee that with this we are discussing the following: amendment 67, in clause4,page8,line33,at end insert—
Amendment 68, in clause4,page8,line33,at end insert—
Amendment 1, in clause4,page8,line42,at end insert—
Amendment 39, in clause4,page9,line20,at end insert

Pat Glass: I was about to tell the Committee about Peter. We will call him Peter because that is his name. Peter was permanently excluded at about 9.30 on a Monday morning, and a fortnight later, that exclusion was upheld. My staff then asked questions. The boy was not known to us or our behaviour support services. The SENCO at the school was contacted, and she said that she knew the boy, but he had never been any problem at all, was quite quiet and had no behavioural issues.
Once we dug a little further, it turned out that on the previous Friday night, around the kitchen table in the family home, which had witnessed much domestic violence in the past, Peter’s mother had, in the midst of a row, with all four children present, picked up a knife and stabbed the father. An ambulance was called and he was pronounced dead at the scene. The police came. Finally social services arrived and all four children, of whom Peter was the eldest, were fostered with different foster parents as an emergency over the weekend. The agreement was that the social worker would ring the school on Monday morning and explain the situation, but she did not do it quickly enough.
Peter was excluded for assaulting a teacher and for the minor demeanour of not wearing a school uniform. The issue had been around the uniform. Clearly, the house was a crime scene and he could not go to get his school uniform. The child turned up at school and the teacher started asking him why he did not have his uniform. At 14, he did not feel able to go in front of the class to explain the situation, so he tried to leave the room. The teacher prevented him from doing so, and he pushed the teacher to one side. The head teacher felt, when the situation was explained, that he could not roll back from the decision that he had made, and his governors felt that they had to stand behind his decision. That is an example of good people doing bad things.
I also wanted to tell the Committee about another child I learned about when I was working in London, of whom I am happy to give the Minister details. He was a statemented child called Lewis, who was permanently excluded for swearing, and he had a statement for Tourette’s syndrome. I recount those examples so that members of the Committee understand that head teachers do not always do what is right, and certainly do not always act in the best interests of children, and those children need to be protected.
The pupil premium is awarded to children who have been highlighted by the Government as requiring additional funding. I said earlier to the Committee that if we look at the largest gaps between our highest-achieving and least-achieving children, it is most often in the outstanding and highest achieving schools and authorities, which we consider to be doing reasonably well, where the gaps are largest. If schools fail to meet the additional needs of such children, is it not right that they are held to account?
One of the proposed new subsections relates to looked-after children and children on the at-risk register. The previous Government had held a spotlight to the attainment of that group of children, which, until then, was a national disgrace. Although it has improved, it is still far from what we would desire, and I think we would all consider that to be a national disgrace. If a school fails to deliver for its most vulnerable children or children in local authority care who have additional needs, is it not right that it is held to account for that failure?
We know that many young carers do not want to let schools, their school friends or teachers know that they are young carers. If schools fail to deliver on the needs of such children, is it not right that they are held to account? These proposed new subsections are about such failure. They are about the failure of schools to identify the issue and if they have identified it, to make provision and follow up on that provision.
Finally, on what was said earlier around SEN and disability tribunals, let us consider the case of a child who has a statement and is permanently excluded—for example, a child who is permanently excluded for swearing and has a statement for Tourette’s. If the parent feels that there has been discrimination and if the tribunal agrees that that is the case and refuses to change the name of the main school on the statement, there is and will be reinstatement. Should the parents be required to go through the process of having an appeals panel uphold their appeal and then go on to an additional SEN disability tribunal? Those parents have enough to deal with. Life is not easy for them and we should surely be part of the solution, not part of the problem. Unless we look at reinstatement where there has been clear failure, we are making ourselves part of the problem for these families who, frankly, have enough to deal with.

Graham Stuart: On a point of order, I do not want to put you in a difficult position, Mr Williams, but when I asked your predecessor, Mr Walker, whether when talking about my amendment on SEN training for members of review panels was the appropriate time to discuss Government memorandum on how independent review panels will operate and the fact that parents will be able to call on an SEN expert, I was told that it was not. My point of order, which I am making as long as possible to help you as much as I can, Mr Williams, is to ask when in the process it would be appropriate to discuss that? I felt that the relation of that point to the membership of the panel and the support there would be for that panel in making a judgment meant that that was an appropriate time, but obviously it was not. I obviously accept the ruling of the Chair.

Hywel Williams: I understand that the point has been made more specifically and therefore it would be in order for you to discuss those matters now, as long as you confine yourself specifically to them.

Graham Stuart: The Department for Education has produced memorandum E45 to the Bill, which outlines how the new independent review panels will operate, including where a child has SEN. In relation to special educational needs, the key proposal is to allow parents to request an SEN expert to advise the independent review panel where SEN may be a factor. The memorandum states:
“Regulations will provide for the constitution of the new review panels, how they will operate and that the procedure that they will follow will be broadly the same as for existing appeal panels. The main change is that parents will be able to request that an SEN expert be present at the review panel meeting , where it is a factor in the exclusion. It is intended that the SEN expert will only attend in an advisory capacity and will not be a full member of the panel with voting power; however he or she will be paid to attend the panel.”
That is an interesting innovation that suggests the Government are taking the issue seriously and want to ensure that, at the panels, children with SEN are supported and their needs are properly represented. That is extremely welcome.
I have a number of questions about how this might operate in practice. Will these experts carry out a formal assessment of the child? Of course, that goes back to my amendment on the subject of the training of the review panel because if those involved are not trained and are unable to understand some of the issues, it will make it harder for them to judge the evidence from the expert. Will they carry out the formal assessment? Will they to do that alone or is it possible that the experts will see the need, having made an examination, to call in other experts? How will it work in budgetary terms? Do the Government intend the expert to be independent of the local authority and/or the school? Will the parents be able to choose the expert? Will the expert be expected to know the child? To what extent will they be able to talk about the specific child? That goes back to my issue about the assessment. What will the experts be expert in? Will they be experts in educational needs, on the law, or on behaviour management? What exactly will they be expected to have as their area of expertise? Will they be generic SEN experts, or will they have different areas of expertise? What advice will they be expected to provide to the panel, and how will that be assessed? Will parents who believe that their child has an unidentified SEN also be able to request an expert, or will that service be available only for children with a statement or for whom there has been school action or school action plus? Who precisely will be eligible to access the expertise? Who will make the final decision on whether an SEN expert is required at the review panel? All that fits in with the training of the panel and our general focus of ensuring that the needs of SEN children are met and appropriately dealt with in matters of exclusion.

Richard Fuller: I am a little nervous, because I cannot match the direct experience, knowledge and statistics of the hon. Member for North West Durham, my hon. Friend the Member for Beverley and Holderness and other members of the Committee, so I shall talk about my general impressions, and from my heart about children with autism and the impact of the process of exclusion. I shall speak aside of amendments 67 and 68, but try to prompt the Minister for some further thoughts, particularly on the exclusion of children with autism.
If one has a child with autism, apart from the care and consideration of how their learning will progress, a key concern is how they will develop sustainable relationships and have a happy personal, social and perhaps married life in future. It seems to me that one of the most devastating impacts on that journey is for that child to be excluded during their time at school. The consequential impact of taking someone away from their peers and friends will have a much longer term impact, and it would be interesting to hear the Minister say more about that. My general impression—I am not as knowledgeable as others on this—is that we are still grappling to understand autism, its impact on the sufferer’s life, and how we as a society can get our schools and other care institutions in our community to help them to overcome some of the major impacts on their life.
Again, my impression is that we have asked our teachers to be at the forefront in helping us to understand and to solve some of the problems. Progress has been made over the past few years by the Government and with the private Member’s Bill. I have seen for myself—I am sure that this is repeated in schools in all hon. Members’ constituencies—how teachers do such work. I visited Daubeney school in Kempston on Monday to look at how it tries to find ways of taking children with emotional issues in the classroom outside the classroom to calm down. The teacher deploys a rat as a way of calming the child. The rat is apparently named after a former teacher, but apparently with that teacher’s okay. That is just one of a number of steps that teachers are taking to try to maintain children with special needs in their mainstream school.
In the light of that and the Green Paper, will the Minister hold it as a personal mission on his part that as we move forward with the other reforms in the legislation, he will monitor, identify and reduce the number of exclusions of children with autism. We have heard the statistics, and we all understand them. It would be welcome collectively to hear from the Minister that he will take steps and measures to reduce exclusions.

Nick Gibb: Welcome back to the clause by clause consideration, Mr Williams, which has moved on speedily since you were last in the Chair. I want to speak to amendment 27 and the others in the group, all of which are linked to particular groups of vulnerable children, and particularly to children with special educational needs.
On amendment 27, hon. Members and I will be largely in agreement on the importance of what should happen in practice, but I hope to persuade them that additional primary legislation will not help to achieve that. The Government are committed to supporting the education of children with SEN. The Green Paper “Support and aspiration” sets out plans to support children with SEN.
I recognise that children with SEN are disproportionately represented among those permanently excluded from school. In many cases, the SEN will be behavioural, emotional or social difficulty, so it is not surprising that their behaviour is more likely than that of other pupils to lead to exclusion. That just reinforces how important it is that all those dealing with the exclusion of a child with special needs give due regard to those needs. I take on board the point made by my hon. Friend the Member for Bedford on children on the autistic spectrum.
The governing body of a school has an important role to play in the exclusion process. Governing bodies will continue to have to consider whether to reinstate a pupil who has been excluded in the same circumstances that they do now. When doing so, they must have regard to guidance from the Department for Education. That guidance will be reviewed and revised in the light of the passage of the Bill and in the light of comments made by members of the Committee. Governing bodies must take account of relevant information pertaining to the child when considering an exclusion. I will be happy to ensure that future versions of guidance will make it explicit that they should take account of information on the child’s SEN—that is currently implicit. In view of the proportion of excluded children who have SEN, I have been persuaded by the comments that I have heard in this debate and previous debates that there should be an explicit reference to SEN in future guidance.
I would hesitate to be so prescriptive as to say that it must be a report from the school’s special educational needs co-ordinator—their SENCO—which is the subject of amendment 27. In many cases the SENCO will be the appropriate source of information, but I would rather limit guidance to the principle that the governing body should take account of information pertaining to the child’s special educational needs. We also intend to ensure that proper account is taken of a child with special educational needs if a case is brought to a review panel. I am pleased to be able to confirm to the Committee that, as set out in the policy statement, which was referred to by my hon. Friend the Member for Beverley and Holderness, parents will have the right to ask for a special educational needs expert to attend the panel. We will have a relevant provision in regulations. It states:
“The main change is that parents will be able to request that an SEN expert be present at the review panel meeting, where it is a factor in the exclusion. It is intended that the SEN expert will only attend in an advisory capacity and will not be a full member of the panel with voting power”.

Kevin Brennan: The Minister may have missed something out there. As I read it, the document states:
“The main changes will be that schools will no longer be forced to reinstate disruptive pupils”.
The next section of the note states:
“Parents will also be able to request that an SEN expert attends”.
It does not state that the main change is that parents will be able to request an SEN adviser. I am not trying to be pedantic; I am trying to ensure that the record is accurate.

Nick Gibb: He may have a different, more accurate version than mine. I was trying to say that the main change in the regulations is that parents will be able to request an SEN expert. I am not sure that there is a huge difference between the two versions, if there are two versions.

Julie Hilling: My question relates to the SEN experts. If a child has not been statemented but the parents argue that it is because of their special educational needs that they are in this situation, will they also be able to call in an SEN expert at that point?

Nick Gibb: Yes, they will. It is up to the parents to make this request and they will not have to prequalify by having a child with a statement or who has been regarded as requiring school action or school action plus by the school. To answer my hon. Friend the Member for Beverley and Holderness, no the experts would not carry out an assessment on the child. The local authority retains its duty of identification and assessment of children with special educational needs, which must be right. The panel’s remit must be confined to that of the exclusion. He asked a number of important questions but we will engage with the special educational needs sector to discuss the practical details when we draw up the regulations for consultation. We will welcome their input and appreciate the helpful advice they can offer on these issues, such as the SEN experts. I hope that that will reassure my hon. Friend and that he will be involved in that consultation process.

Stella Creasy: I appreciate that we will come on to an amendment on this. As the Minister is clarifying who will be entitled to call for a special educational needs co-ordinator to be brought to the meeting, would he also extend that power to the young person in question, particularly as some of the older pupils may feel that they want a representative at such a panel? Will it only be parents? Could pupils themselves call upon that process?

Nick Gibb: The principle has been that it is the parents. That is an important principle. When the child or pupil reaches the age of 18, these matters are very different but it is only the parents who can take an issue to appeal. That was the case with the independent appeal panels and it will remain the case for independent review panels.

Tessa Munt: I just want to clarify that when the Minister uses the word “parents” he automatically implies carers as well.

Nick Gibb: Of course. My hon. Friend is right to make that intervention. I apologise for not making that clear. I hope that it will be deemed to be the case when for ease of reference I say “parents”.
I believe that what we are proposing is sufficient to ensure that governing bodies will take due account of a child’s special educational needs when they consider an exclusion. In the light of that I hope that the hon. Member for Cardiff West will withdraw his amendment. I will come to his other amendment later but I will deal now with amendment 67, the SEN trigger amendment tabled by my hon. Friend the Member for Beverley and Holderness. I understand his intentions and I have considerable sympathy with what he seeks to do. I hope that I can persuade him that this is not the most effective way to address the issue.
“Support and aspiration”, the Green Paper on special educational needs, emphasises the importance of identifying behavioural problems and their causes and addressing them at an early stage so that a pupil’s behaviour can improve and he or she is not at risk of being permanently excluded because no one has intervened to tackle the root cause of the unacceptable behaviour. Early intervention should be central to any school’s approach to behaviour management. One of the reasons for the new approach to exclusions that we will trial from September, under which the excluding school will be responsible for the choice of alternative provision and the attainment of excluded pupils, is that we believe this will leave schools to focus more on early intervention and use some of the additional funding that will be delegated to them from local authorities.
An assessment of possible special educational needs can be an important part of early intervention. Schools may well find it useful to have a child’s needs assessed, possibly a multi-agency assessment going beyond the special educational needs. If a child misbehaves regularly, a second or third term exclusion could be a school’s trigger or a reminder to them to consider an assessment. I have no problem with the principle that is set out in the amendment—or, indeed, the principle that is set out in recommendation 25 of the Select Committee report—but I am concerned that the amendment may be too rigid in what it imposes. That can sometimes lead to a box-ticking mentality rather than effective action.

Graham Stuart: The Green Paper sets out clearly that
“we will recommend in exclusion guidance that children are assessed through an effective multi-agency assessment for any underlying causal factors. We will suggest that schools trigger that assessment in instances in which a pupil displays poor behaviour.”
I welcome that, and I think that that principle is fine, so I am happy not to press my amendment. Can the Minister give us any idea of when such exclusion guidance might be forthcoming?

Nick Gibb: A lot of work is taking place now on all the guidance on behaviour and exclusion. We want to simplify it so that people actually read the guidance. It must, however, reflect the current state of the law, so we are holding off on issuing the guidance for consultation until the Bill reaches the statute book. Work is ongoing now, and the guidance will be available shortly for my hon. Friend and others to look at.

Kevin Brennan: The Minister has referred to the pilots that will be run regarding exclusion, and he uses the phrase “alternative provision” a great deal in relation to that. Is there an assumption that the exclusions that will be considered in the pilots will relate only to pupils who are to go, for example, to pupil referral units, rather than to pupils who will simply be transferred into another mainstream school?

Nick Gibb: My understanding is that we intend it to be any exclusion; the school that makes the exclusion will continue to be responsible. I will come back to the hon. Gentleman if I have not got that exactly right.
My hon. Friend the Member for Beverley and Holderness is right to quote that passage from the SEN Green Paper, which I was going to quote myself:
“Incidents which prompt multiple exclusions will often be an indication that a pupil has underlying difficulties that may not have been correctly identified…Exploring wider family circumstances is often crucial to identifying the root causes of behavioural problems”.
The Green Paper goes on to state, in the words that my hon. Friend has quoted, that
“we will recommend in exclusion guidance that children are assessed through an effective multi-agency assessment for any underlying causal factors. We will suggest that schools trigger this assessment in instances in which a pupil displays poor behaviour that does not improve despite effective behaviour management by the school.”
In essence, that is not a million miles from what my hon. Friend has recommended in the Education Committee’s report and in amendment 67, but it is not an automatic regulatory trigger. We are seeking to avoid that, and I sense that my hon. Friend also wants to avoid that trap.
I hope that hon. Members will take from that that we are committed to improving the identification and assessment of needs that may have a negative impact on pupils’ behaviour. Although we do not want to oblige schools to react to a specific trigger—the effect of which, incidentally, might be that schools wait for that trigger to occur, even though early indications are already there—we want to urge them to consider early assessment, which should be effective multi-agency assessment. Schools must have regard to guidance on exclusions, which will be revised and reissued in the coming months. The trial of the new approach to exclusion should also offer an opportunity to assess how this approach to assessment can work in practice. We will have scope to amend guidance further in the light of what we learn from that trial. I believe that the approach that we have taken is appropriate, and that it will be effective.
I now turn to amendment 68 on training. I fully acknowledge the importance of training for panel members, and I agree that it is important that independent review panels are properly equipped to consider the particular needs of children with special educational needs or disability. My hon. Friend has referred to the detailed policy statement in relation to the proposed regulations, which includes our intention that regulations will cover the establishment, constitution and procedures of the review panels. We fully intend the regulations to include a requirement that review panel members must be appropriately trained, and we expect, broadly, to replicate the current training requirements for independent appeal panels. We expect that panel members will need to have training in respect of the law governing exclusions and review panels; the duties under the Equality Act 2010, which was referred to by the hon. Member for Cardiff West; and the law on human rights, whether the Human Rights Act 1998 or the European convention on human rights. Also, they will need training on judicial review principles and the need to observe procedural fairness and the rules of natural justice.

Graham Stuart: The Minister nearly said that he supported my amendment. It is fantastic to imagine that a Government Minister would accept my amendment in the Committee today—he will, no doubt, make that clear in a moment. However, it is clear that he has accepted the principle. I would point out that there is a particularly strong link between children identified as having behavioural difficulties and children who have unidentified speech, language and communication difficulties. The Minister is absolutely right to say that it is so important that review panels have the expertise to recognise that. I know that there is no greater champion in Parliament of children with such difficulties than the Minister, and he will want to ensure that the panels are in the best position to recognise that need.

Nick Gibb: My hon. Friend makes a good point, which will be reflected in the guidance in due course.
Local authorities will be responsible for training the members of the independent review panels, as they are now for training independent appeal panel members. Local authorities and schools carrying out their functions under this section must also comply with the new public sector equality duty, which I covered in the debate on the previous group of amendments. The general duty on public authorities will be to have due regard to the need to eliminate unlawful discrimination, harassment and victimisation; to advance equality of opportunity between people who share a protected characteristic; and to foster good relations between people who share a protected characteristic and those who do not. Schools and local authorities must have regard to their duties under the Equality Act when taking decisions relating to exclusions.
We are taking several other measures to ensure that panels are able properly to consider cases involving children with SEN and disabilities. As I mentioned in the context of amendment 27, parents will be able to request that an SEN expert be present at the review panel. Additionally, as mentioned by the hon. Member for North West Durham, once appeal panels are removed, parents will automatically be able to bring disability discrimination claims in cases of permanent exclusion to the first-tier tribunal. That will give them access to additional expertise for disability-related exclusion cases. I hope that that has reassured my hon. Friend the Member for Beverley and Holderness and that he will withdraw the amendment, notwithstanding how similar our views are on these matters.
I would now like to turn to amendment 1, which was tabled by the hon. Member for North West Durham. In introducing the amendment, she said that it related to four areas: SEN, children in poverty, looked-after children and children with caring responsibilities.
I have considerable sympathy with the hon. Lady’s intentions to protect the interests of groups of children who may be vulnerable for particular reasons. I explained in the debate on an earlier group of amendments why clause 4 is in the Bill. A decision by an appeal panel to reinstate an excluded pupil can undermine the head teacher’s authority and make it harder for good discipline to prevail. Sally Coates, the principal of Burlington Danes Academy, gave evidence to this Committee and she said:
“I am very pleased that the appeals panels have gone, having had a permanent exclusion overturned. A teacher was attacked with a knife and the child was able to come back to the school.”––[Official Report, Education Public Bill Committee, 1 March 2011; c. 57, Q111.]

Mark Hendrick: The example that the Minister gives is one that he gave in an earlier discussion about previous amendments. Would he also take into consideration the case that my hon. Friend the Member for North West Durham gave, where a child witnessed the murder of his own father the previous night and was excluded the following day? Is that not even more of an argument for supporting the panel’s conclusion?

Nick Gibb: I listened carefully to the hon. Lady’s examples of Peter and Lewis, and their cases were heart-rending—there is no question about that—but we have to trust head teachers. If there is a pattern of poor decision-making by a head teacher, the school’s governing body will be aware of that and will need to take action to tackle it. However, the Government are making a step change in the relationship between the Department of State and the professionals who run our schools.
I want to make a serious point, not a partisan point. What we are discussing is a change, and difficult decisions will need to be taken as a consequence. Governing bodies will have to—“up their game” is the wrong phrase, but they will have to take very seriously how heads are responding to the new trust that we are trying to foster in our schools. I believe that that will work. Head teachers are professional people. They take exclusion extremely seriously. It is the last resort for almost every head teacher I have ever met, and I am sure that that is also the case for the hon. Member for North West Durham and her family members who are head teachers.
However, if there are head teachers who are not up to it, we need to know who they are swiftly, not just for this issue but for general issues to do with running a school. Therefore, governing bodies do need to take these issues seriously and assess how their head teachers are managing the schools.
The hon. Lady also gave the example of a boy with Tourette’s syndrome. We are safeguarding children from disability discrimination cases that lead to exclusions by giving parents the direct right of appeal to the tribunal. That should deal with cases such as that of Lewis, to whom she referred.
To return to the amendment, permanent exclusions will generally be the last resort, after other interventions have been used to try to tackle a pupil’s behaviour. A message that head teachers are always keen to put over to us and which we heard clearly in the public evidence sessions is that they do not want to exclude pupils, but there are cases in which it is right and necessary to do so. I sympathise with the hon. Lady’s aim of supporting vulnerable children, but the amendment is not the right way to safeguard their interests. It would give the new review panels the same power as current independent appeal panels to order the reinstatement of an excluded pupil. In 2008-09—I have cited this figure before—panels ordered the reinstatement of 60 pupils from 640 appeals lodged.
In fact, the amendment would give review panels an even greater power. They could not only order reinstatement, but direct the school to make reasonable adjustments to support the child or to make extra provision for the child. Those are not appropriate functions for an exclusion review panel. There are important issues about how we identify and support children with special needs, but we should not put all that on to the exclusion process.

Pat Glass: In relation to the appeals panels asking or requiring schools to make reasonable adjustments and appropriate provision, that is the law as it stands. If a school identifies a child with special educational needs, it is required to make reasonable adjustments and to make reasonable provision. Yes, most head teachers whom I have worked with have been highly professional, but there are those who are not, and my concern is that the powers in the Bill allow head teachers to fail, to act unreasonably and to get away with it.

Nick Gibb: The hon. Lady is right to say that that is the law relating to the school, but that duty should not then be taken and given to the review panel, because review panels are there to tackle one issue about the procedures that were followed in excluding the child. They are there to ensure that those procedures were properly followed and were lawful. That does not mean that the school does not have those duties. Of course it has had them until now and will continue to have them even after the Bill has been passed.

Stella Creasy: Will the Minister clarify that under the new provisions, he expects only children in respect of whom disability discrimination may become a factor to be able to overturn an exclusion? Will he clarify that, under these proposals, there will be no instance in which a review panel could say that an exclusion was not merited; and that its only power to act would involve a fine on the school, so there would be no recourse for the young person involved?

Nick Gibb: There are many routes. If the review panel believes that the procedure was flawed, it can quash the decision and request or require, depending on what category its decision reaches, that the governing body reconsiders the exclusion. The governing body could reconsider the exclusion and decide to reinstate the pupil. Therefore, there is a route for reinstatement that does not rely only on the case being one of discrimination on the basis of disability. If that route does not work, there is the other route that is confined to those who believe that the exclusion was caused by discrimination as a result of the child’s special need or disability.
I recognise that children with special educational needs are over-represented among those excluded. It is of the highest importance that children have their special educational needs identified as soon as possible, so that appropriate support can be put in place, which is a key theme of the Green Paper—making sure that there is better early intervention for that group of young people to prevent problems later, and to improve their educational outcomes and life chances. I have quoted what the Green Paper states about assessment and the identification of children’s needs.
Occasionally, head teachers will still wish to exclude a pupil with special educational needs. We intend to prescribe in regulations that, in those circumstances, parents may ask for an SEN expert to attend the panel hearing and to advise on relevant issues. As I have just said to the hon. Member for Walthamstow, if parents believe that the exclusion involved discrimination on the grounds of disability, they will be able to take their case to the first-tier tribunal.

Pat Glass: I welcome the spirit in which the Minister’s comments are intended. Does he not believe that that kind of generosity about an SEN specialist should also apply equally to children who are looked after by the local authority, given the massive disadvantage that those children have?

Nick Gibb: If I can now come to the issue of looked-after children. We want the local authority that cares for them to act in those children’s best interests and to ensure that they receive the support that they need. Local authorities have a duty under the Children Act 1989 to safeguard and promote their welfare, and so have a clear responsibility to work closely with the schools attended by their looked-after children to minimise the risk of a child being permanently excluded.
It is true that looked-after children are at greater risk of being permanently excluded than other children. Clearly, they are a group of vulnerable children, who may be coping with a whole range of emotional issues when they go to school. Those issues will sometimes manifest themselves in poor behaviour. It is worth remembering that schools have developed a much greater awareness and understanding of such challenges than they had in the past. All maintained schools and academies are required to have a designated teacher for looked-after children, who has a role in championing their education and acts as a source of expertise and advice for staff. It is therefore not surprising that some schools have not had any looked-after children permanently excluded for several years.
No decision to exclude a looked-after child or any child should be taken lightly, and for looked-after children everything possible should be done through discussion before the point of exclusion is reached. Requiring a school to reinstate children whose behaviour led them to being permanently excluded is not the right approach, but if the child has special educational needs an expert can be put on the review panel.
The position will be similar for young carers, whose problems I appreciate. Last week, I met the Princess Royal Trust for Carers and the Children’s Society to discuss the problems faced by carers in schools. Good schools do not exclude pupils without first seeking to understand the underlying causes of bad behaviour, and ensuring that the child and family have access to appropriate and timely support. Indeed, schools are in a unique position to observe that all is not well in the life of a child. Young carers, like all vulnerable children, deserve support. There is no question in my mind but that we need to do more to ensure that schools can identify young carers and give them the flexibility—a word emphasised by the Princess Royal Trust for Carers—to juggle school life and their home responsibilities. But the exclusion panel is not the place to do that.
I come to the final group of amendments on free school meals and the children who will qualify for the pupil premium. The amendment tabled by the hon. Member for North West Durham covered children eligible for free school meals. The pupil premium is intended to help schools to provide for the needs of disadvantaged pupils. We look to schools to use that money effectively to support the pupils. I would argue that those pupils do not necessarily have additional needs in quite the same way as those with special educational needs and disabilities, or indeed looked-after children or young carers, so their position is not quite the same as those three other groups, although the pupil premium will be payable for looked-after children. The same principle applies. Reinstatement is not the answer for them or others in their schools.
Tackling bad behaviour early must be the way forward rather than leaving it until it is too late. When early intervention has failed and serious or persistent disruptive behaviour has led to permanent exclusion—

Meg Munn: The Minister says, “when early intervention has failed”. We have raised concerns about the provisions because, in the experience of my hon. Friends, it appears that early intervention has not happened for quite a few children. A child can get to exclusion and then find out subsequently that they will not be reinstated, so the person who pays the price for the failure of the school is the child, and we should not underestimate the damage that is done to children by having to move schools.

Nick Gibb: I do accept that. That is why I want to get the early intervention right, and that is the drive behind the Green Paper. However, if a child is not flourishing in a school—this is the point about the quote that the shadow Minister gave earlier about the inefficacy of multiple fixed-period exclusions. The continued poor behaviour in that school is not in the best interests of the child. It may be that the child needs a new environment, a new school, a fresh start or more specialist help to be able to tackle their behavioural problems. We hope that engaging specialist help, if the underlying causes of that poor behaviour had not been identified, will lead to that identification and therefore more support.
Reinstatement should not be a power of the review panel. Assigning a review panel powers in relation to the identification of a child’s individual needs and determining specific educational and specialist provision changes the purpose of the panel and in practice will be beyond their competence, so I would urge the hon. Member for North West Durham not to press her amendment.
Amendment 39 seeks to give the Secretary of State the ability to set out circumstances in which a special educational needs assessment must be carried out in relation to an excluded pupil. While I do not agree with the amendment, I understand the sentiments behind it. It is important that head teachers have the right and authority to exclude a pupil when necessary, but I also know that it is preferable for all involved if behavioural problems are stopped before they escalate to the point at which a permanent exclusion is necessary. If a pupil who is at risk of being excluded, or who is repeatedly excluded, has underlying special educational needs that are a causal factor in his or her behaviour, it may be possible to stop that behaviour if those needs are identified. It is, of course, the provision of appropriate support as a result of the assessment rather than the act of assessment itself that can help to prevent any unnecessary exclusions.
As discussed at a recent meeting that I had with the Special Educational Consortium, when faced with a child with persistently poor behaviour, the school should assess the child and their situation to identify any factors contributing to that behaviour. The child could have special needs or there may be problems at home. I have already quoted what we proposed on this in the Green Paper.

Stella Creasy: The Minister just said that he has already quoted what proposals the Government would undertake if there were problems at home. We have not had much discussion about what the Government would do to deal with what they might term “additional needs”. Given the proposals to remove children from the SEN register, will the Minister set out a little more about how the Government intend to support the children whose needs lie outside the classroom under this process?

Nick Gibb: In the Green Paper, we talk about a whole family approach to the assessment of needs and the delivery of services, which means we can ensure that children from families facing multiple problems are dealt with. That is why we want to have an effective multi-agency assessment for any underlying causal factors that will bring in those home life issues, as well as any underlying medical or emotional needs of the child. It is not right for the Government to prescribe how and when a school should conduct assessments. Professionals who have the facts of each child’s circumstances are better placed than we are in this Committee or in the Department to make that kind of judgment. The type of assessment required will vary from case to case, and a number of different triggers could prompt a school to arrange for one to happen. In light of what has been a lengthy debate, I urge the hon. Member for Cardiff West to withdraw his amendment, and other hon. Members and hon. Friends not to press their amendments to a vote.

Kevin Brennan: Thank you, Mr Williams. Prynhawn da—good afternoon—and croeso yn ol—welcome back—to our proceedings. Having heard what the Minister has to say, I beg to ask leave to withdraw the amendment. However, we remain concerned that the Government should get this right. We are still very concerned, as our next group of amendments and other amendments will show, about the procedure that the Government are introducing in relation to the review panels.
I welcome what the Minister said about there being explicit reference to SEN in the future guidance. We look forward to hearing more about that and I thank him for telling the Committee that that is what he intends to do. I have one question for him on the point raised by the Chair of the Select Committee, who asked a series of questions. I understand why the Minister perhaps was unable at this point to answer every question in detail that the Chair of the Select Committee put to him about the matter and that he wants to consult further on exactly how it will work. However, the note from the Department states:
“Parents will also be able to request that an SEN expert attends the panel where it is relevant to the exclusion.”
Can the Minister tell the Committee two points about that relating to the hon. Gentleman’s questions? First, can that expert be chosen by the parents themselves in those circumstances—in other words, will they be allowed to choose who their expert is? Secondly, the note uses the words
“will…be able to request.”
Will parents have the right to have an expert to give evidence to the panel, rather than simply a right to request, because those are two different things? I would be interested to know what the Government’s intention is with regard to that—is it to grant a right to request or to grant a right to parents to be able to have somebody there who is an SEN expert? In addition, will that expert be someone of their choice?
I will not press amendment 39 to a vote, although the Minister did say that the school should assess all special needs where the school has been encountering a series of poor behaviour. Clearly, we would like that provision to be strengthened but, at this point, I beg to ask leave to withdraw amendment 27. Before the end of the debate, I hope to hear an answer to my question.

Nick Gibb: As the hon. Gentleman quoted, the memorandum says that an SEN expert will
“be present at the review panel meeting, where it is a factor in the exclusion”.
That is what the memorandum says, but we will consult on that to see how widely the measure can be drawn and we will establish whether it can be drawn widely enough to make it a right of parents to request an SEN expert. The way the policy is developed at the moment, as is set out in that document, means that it needs to be a factor in the exclusion. However, we are not inflexible on that point. The local authority will appoint the expert, which I think addresses one of the questions asked by my hon. Friend the Member for Beverley and Holderness. All of the issues will be put out for consultation.

Graham Stuart: On the substantive issues in amendments 67 and 68, the Minister has said that he plans to deliver, in guidance, the main benefits envisaged by them. I am happy, therefore, not to press them to a Division.
I have another question about the expert on the panel. Where did the idea come from? It is all very well to say that all the details will be put out for consultation with specialists in the area, but what was the thinking behind that? Why is it seen as the right way to go, as opposed to other measures that could be taken? Special educational needs are a key part of the exclusion of so many children, so why is there not a desire to have an expert on the panel even if they are not actively acting as an advocate for the child, particularly if they have met and assessed them in some way? I am still not clear about where that thinking came from, but I am glad to accept the Minister’s reassurances on amendments 67 and 68.

Nick Gibb: The thinking is that it is an additional safeguard for children with special educational needs and that not every exclusion relates to the special educational needs of children. A disproportionate number of children who are excluded have special educational needs, but many exclusions are for a whole host of reasons other than SEN. I hope that, with those words, we can press on.

Kevin Brennan: I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Kevin Brennan: I beg to move amendment 35, in clause4,page8,line36,at end insert—

Hywel Williams: With this it will be convenient to discuss amendment 36, in clause4,page8,line43,after ‘regulations’, insert ‘made by affirmative resolution’.

Pat Glass: On a point of order, Mr Williams. I was not asked whether I wished to withdraw my amendment or not.

Hywel Williams: The hon. Lady can speak to her amendment when the time comes to discuss it on the amendment paper.

Kevin Brennan: Amendments 35 and 36 also relate to the review panel. Amendment 35 would empower the review panel to require reinstatement. It seeks to understand the thinking behind the Minister and the Government’s decision to have a panel that cannot require reinstatement. It also seeks to probe the Government on the reasons for introducing the clause. The National Union of Teachers told us that
“evidence from the Runnymede Trust shows that of the 8,110 permanent exclusions in 2007-08, only 710 (fewer than one in 11) were contested in front of appeals panels. Of those, the panel found in favour of the pupil in one in four cases: a total of 180 times. This represents a head teacher’s decision being overturned at appeal in just 2% of all cases of permanent exclusion.”
The NUT says that, without the power to reinstate, the review panels are, in effect, “toothless”—that is the word it uses. The clause is an example of the way in which the Bill reduces the powers and rights of parents, because it means that, ultimately, the responsible body’s decision is final.
Of course, the Bill allows the review body to “quash” decisions and recommend that the responsible body reconsider them. Under what circumstances, however, would the responsible body, when it reconsiders, come to a different decision from that at which it arrived the first time around, given that it has the power to reject that?
Barnardo’s told us that
“the loss of a right to appeal and to reinstatement after exclusion in Clause 4, and Schedule 1, and the restriction of the powers of the school adjudicator in Clause 34”—
which we will be debating later on in the Bill—
“would have a particular impact on those families least able to navigate the system.”
It says that it would like independent appeals panels to remain or, at a minimum, for the new review panels to be able to reinstate pupils.
We have also received evidence from the children’s commissioner on this point. She expressed extreme concern at the proposed changes to the system for appealing against school exclusions. In particular, she was concerned that review panels would not be able to require that an excluded child be reinstated. She went on to say:
“This is equally concerning given present inequalities in exclusion rates by gender and ethnicity.”
The Children’s Society also took a similar position on this issue. It is concerned that the removal of this power will leave vulnerable children without the right of redress—even in cases of mistaken identity or where the process was found to be deeply flawed. It said:
“We would like the independent appeals panels to remain, or for the new review panels to be able to reinstate pupils.”
Similarly, the Children’s Rights Alliance for England has said that it is
“concerned that the Bill replaces independent appeal panels with weaker ‘review panels’ which will be unable to reinstate children who have been unfairly excluded. Children who have been unjustly excluded must be able to return their own school.”
The National Children’s Bureau said that because reinstatement happens in a very small number of cases, it did not feel that there was any evidence that reinstatement procedures are being abused or that instructions to reinstate are being taken lightly. It also said that where a student has been unjustly excluded from their school it is only right that they should be able to return.
Both the National Children’s Bureau and the NUT said that the move was
“counter to the principles of natural justice.”
That, of course, is something that may well end up being tested in the courts.
On another point, we have already heard how children with special educational needs and children from certain social groups have disproportionately high rates of exclusion. The removal of the ability for a child to be reinstated by an independent panel carries the risk that these children might be discriminated against. Earlier on, we talked about autism. I know that hon. Members from all parts of the House are genuinely concerned about children on the autistic spectrum. Ambitious About Autism told us that
“removing the right to reinstatement through the independent review panel may have the unintended consequence of increasing exclusions among those groups already more vulnerable to exclusion— including children with autism and other SEN.”
As we heard this morning, children with statements of special educational needs will still be able to make a disability discrimination claim at a special educational needs and disability tribunal hearing. In that instance, the panel can order the school to reinstate the child if they do not uphold the exclusion decision. That raises a couple of interesting points. The Alliance for Inclusive Education told us that it is worried that parents will be required to jump another legal hurdle of proving that their child is disabled under the Equality Act 2010 in order to gain the right to have him or her reinstated on the school roll. There is a danger that all we are doing is putting in an additional hurdle or piece of bureaucracy in front of parents. It also raises a point of principle. The Minister said a moment or two ago that it was a step change in relationships to give head teachers the authority ultimately to insist on exclusion. In fact, of course, he is not giving head teachers the right to exclude under any circumstances, because if the parents are able to take their case to the special educational needs and disability tribunal and successfully argue that their child is being discriminated against on those grounds, the tribunal can order reinstatement. Before judicial review, we have a legal body, in the tribunal, which can order a head teacher and the school governors to reinstate an excluded pupil, even though the school had insisted that it did not want the pupil to be reinstated after the review panel had recommended reinstatement.

Nick Gibb: Although clause 4 makes significant changes to the power of the appeals process to reinstate pupils, when I referred to step change I meant the step change in the relationship between the Department for Education and professionals, including head teachers. That relationship is changing significantly, away from the top-down prescriptive approach of the previous Administration to a new trust in professionals. It is a significant change—it is a step change—and it will require people to make difficult decisions.

Kevin Brennan: I dispute that the previous Administration did not show an attitude of trust towards head teachers and other professionals. In fact, we had a good relationship, including through the social partnership set up under the previous Government.
The Government are taking two approaches. In one sense, they are saying that they will not prescribe what schools should do in all circumstances; in another sense, they are saying that schools will be judged on whether they deliver the English bac. The Minister may claim that that is a nudge, but as I have pointed out before, it is a nudge with a loaded gun. If the schools do not deliver the bac, they will feature badly in the league tables endorsed by the Secretary of State and the Department. It has had a significant consequence, given what schools are having to do with their timetables for next year and the pressure being put on pupils to opt for certain subjects. I shall not go too far down that road, but I do not agree with the Minister that it is a significant philosophical step change in the exact direction that he indicates.
The Minister would like to give the impression—I do not accuse of him of trying to mislead anyone—that the consequence of clause 4 is that, ultimately, head teachers cannot be gainsaid if they exclude a pupil and the governors agree. In that regard, the head teacher will be rather like Captain Bligh—still captain of the ship, and still able to have his way, even if there is mutiny on the Bounty.
In reality, a pupil may be excluded, that pupil may appeal against the exclusion, the case may come before the appeals panel and the appeals panel may find the school’s decision inadequate when considered against the test of judicial review. Even under those circumstances the school may insist on exclusion, but it could face a fine as a result—or a financial adjustment or penalty, depending whose dictionary is consulted. The appeals panel may say that the pupil should be reinstated, quashing the school’s decision, but the school may still say, “No, we’re not going to reinstate the pupil. We’re going to exercise our right to be unreasonable.”
When I say that the school might exercise its right to be unreasonable, the Minister’s E45 note states that the
“Independent review panels…will be able to direct that a school pays a financial penalty where it excludes unreasonably.”
The school is allowed to exclude unreasonably, and even then the matter is not over because the parents could go along to the special educational needs and disability tribunal and argue that their child was being discriminated against on the basis of their disability. It is not an absolute right for the head teacher and the governing body to be able to exclude.
I want to explore the Government’s thinking on the likely increase in bureaucracy that the clause would cause for schools. The NUT warned that, rather than reducing bureaucracy, there is a danger that removal of the panels may lead to several parents taking legal action against schools, which would involve schools in a lot more work and unnecessary bureaucracy. In his April 2009 independent review, “Learning Behaviour: Lessons Learned, a review of the behaviour standards and practices in our schools”, Sir Alan Steer recommended:
“Independent exclusion appeals panels should be retained, both in the interests of natural justice and to prevent schools becoming embroiled in time-consuming or costly alternative legal processes.”
There is a danger that that is exactly what may happen.
The purpose of the amendment is to provide understanding of why the power to reinstate is being removed; to maintain natural justice for pupils; to find examples of situations in which the review panel would cause an exclusion decision to be reversed; to understand the impact on children with special educational needs and other groups; and to examine the bureaucratic impact on schools. It would be useful if the Minister confirmed that even after all these processes parents could still go on and obtain reinstatement of their child via the special educational needs and disability tribunal.
Amendment 36 seeks to clarify the supplementary powers of review panels. It is a probing amendment to ask the Government to set out what they intend to put in the regulations when they say:
“Regulations may provide for the panel to have supplementary powers, and in particular may provide that the panel has the power to make a direction about the effect on an excluded pupil of a recommendation under subsection (4)(b) or a direction under subsection (4)(c).”
Will the Minister clarify on the record what he envisages the panel’s supplementary powers might be, what problems those powers will be designed to address, whether those powers will be permanent or temporary, and in what circumstances they may be awarded and invoked? The NUT says that
“any such panel should have meaningful powers and provide proper provision for a parent or pupil to appeal against a schools decision”.
The Minister has gone some way in trying to flesh out some of these matters, and the amendment would ensure that the affirmative resolution procedure would be used to bring into effect regulations on supplementary powers of review panels.

Nick Gibb: Amendment 35 would undermine the essence of the clause. A review panel must not be able to direct a school to reinstate a child who has been excluded. As I said in an earlier debate on this clause, for a school to run effectively and with good behaviour and discipline, it is vital that the head teacher has authority to manage behaviour. Reinstating an excluded pupil may undermine that authority, and adversely affect behaviour throughout the school to the detriment of other pupils and staff.
It should be remembered that the children who suffer most in an unruly school where bullying is rife are the very children who have been the subject of most of the debate this afternoon and this morning. It is children with special educational needs, looked-after children and children with caring responsibilities who are disproportionately the victims of bullying in schools where bullying is rife and out of control.
The removal of independent appeal panels was supported in the public evidence sessions of this Committee by Brian Lightman, the general secretary of the Association of School and College Leaders. He said:
“Exclusions are a last resort. There is always a tension in relation to the need to exclude. We need to put this in perspective. We hear lots of things about multiple fixed-term exclusions. Permanent exclusions, which are what we are talking about here, are a very rare thing. However, they have to happen, and we must not have any deterrents that prevent schools from excluding in those cases, because as a parent, I and, I am sure, you would want your child to be protected from having people in school who are so disruptive.”––[Official Report, Education Public Bill Committee, 1 March 2011; c. 25, Q51.]
Dr Moynihan, the chief executive of the Harris Federation said:
“The power not to have independent appeal panels overruling exclusions, in terms of sending a child back to a school, also seems to us to be good.”––[Official Report, Education Public Bill Committee, 1 March 2011; c. 7, Q11.]
Russell Hobby, the general secretary of the National Association of Head Teachers, said:
“It is right that exclusion should be a last resort, and it should be made as difficult as possible. It is also right that children should not be reinstated after their head teacher has made a decision to exclude someone.”––[Official Report, Education Public Bill Committee, 1 March 2011; c. 25, Q51.]
We have already discussed in depth the needs of vulnerable children with regard to exclusions and the measures that we are taking to protect them. We consider that the new arrangements comply with human rights legislation. We are providing for an independent review in every case of permanent exclusion where a parent, or a pupil if they are over the age of 18, requests it. All public bodies, including schools, local authorities and our new review panels, have to conduct their decision-making in a way that is lawful in the light of the principles applicable in an application for a judicial review. We are asking the panel to look at the school’s decision in that light.
The principles are: legality; the body must act within the scope of its powers and for proper purpose; procedural fairness, for example, giving the individual the right to be heard; reasonableness and rationality; taking into account relevant but not irrelevant factors and not making a decision that no reasonable person could have made; and, compatibility with the European Convention of Human Rights and EU laws.
To reassure hon. Members, arrangements for the education of permanently excluded pupils are already covered in legislation. Their rights to education are therefore protected. Local authorities have a duty to arrange suitable full-time education from the sixth day following a permanent exclusion of a pupil. There is an equivalent duty on schools to arrange full-time education from the sixth day of a fixed-term exclusion. It is extremely important for excluded pupils to be given the chance to pursue their education in an appropriate setting and have the opportunity to secure meaningful qualifications. Improving the quality and range of alternative provision is a high priority for this Government. We are considering the barriers to more involvement in alternative provision from the voluntary and private sectors, as well as looking at how to free up the sector as a whole and how to improve provision in pupil referral units. One way would be by the new category of alternative provision—academies—to be established by clause 51. I will not go down that route today.
I understand that children’s rights groups have expressed concerns that this legislation will leave parents with no other route of appeal to seek reinstatement, other than judicial review, which I think was the point that that the hon. Member for Cardiff West was making. Since the independent review panels will be using the same threshold as will be used in a judicial review, there will be no point in pursuing a judicial review. I am clear that we have taken steps to ensure that procedures are fair and that a judicial review would not be successful. The local government ombudsman will continue to have a role in relation to the panel itself, as it does now. We are amending the relevant section of the Local Government Act 1972 to provide for that. The ombudsman will not be able to overturn the decision of an independent review panel, nor able to reinstate a pupil. I think that I have addressed all the concerns of the hon. Gentleman in relation to amendment 35.

Kevin Brennan: It is nevertheless quite a novel provision that the Minister is introducing in the Bill. Can he think of any other example, where the Government have introduced a provision to allow a public authority to act unreasonably?

Nick Gibb: Schools will not be allowed to act unreasonably. The decision will be referred back to a school’s governing body if it has been unreasonable. The governing body will be asked and/or required to reconsider the decision. If it decides that the decision is correct, the decision will be upheld by the school.

Mark Hendrick: The figures show that the decision is reversed in some 10% of cases—I think it is 60 from more than 600 cases—in which a child has asked to be reinstated. That shows that 90% of decisions made by head teachers are upheld in the existing system, so it is not a thing that prevails a great deal. We are talking about 60 cases. What is the point of creating a watchdog that does not have any teeth?

Nick Gibb: It does have teeth. Those 60 cases have a devastating effect on the schools involved, as we heard from Sally Coates, the principal of Burlington Danes academy. One case is too many and will affect a school and all of its 1,500 pupils very badly.
The review panel has teeth. It can quash a decision, and it can ask and require a governing body to reconsider a decision. If, on consideration, the governing body upholds a decision not to reinstate a pupil, the review panel has teeth, as any panel would have when dealing with what it sees as unreasonable behaviour, to impose a financial penalty on the school.
The panel may also change things such as the record of the pupil who has been excluded. It can remove the two-exclusion rule from that pupil, so that the exclusion will not count towards the two exclusions that would remove from the parent the right to elect the school they want to go to as an alternative. The panel has teeth and can make robust decisions when it comes to unreasonable behaviour by a school, like any panel or any court

Kevin Brennan: But the Bill’s central point is that it introduces new provisions that allow schools ultimately to decide to act unreasonably, albeit, as a result, they will have to face a financial adjustment, as the Minister sometime refers to it; a financial penalty, as it is referred to in his note; or a fine, as I refer to it. Nevertheless what is novel about this clause, and what is unusual about the Bill, is that it introduces the concept that the Government want ultimately to allow the responsible body in a school to act unreasonably. I am not a lawyer, but I wonder whether down the road that is something that might feature in some interesting cases versus Her Majesty’s Government. I also wonder what they will make of it down the other end of the Palace of Westminster.

Nick Gibb: The review panel will take action where there has been unreasonable activity. What it cannot do is reinstate. It is no different from any court that imposes a fine or a punishment for the behaviour of an individual. The fact that it does not require the person to put back the television set they took from the house does not mean that it is condoning the taking of the television set from the house. It is imposing a different penalty. All we are saying is that it can do all these different things, but it cannot insist on reinstatement.

Kevin Brennan: So, to take the Minister’s analogy, the review panel has the power to punish head teachers and schools when they exercise the new right he has given them to act unreasonably?

Nick Gibb: I would not use that word, because it is not a criminal court. The review panel may impose hefty adjustments.

Stephen McPartland: Would the Minister agree that, if a head teacher behaved in the manner suggested by the shadow Minister, under the current system they would exclude the pupil and the pupil would then be reinstated. The headmaster or headmistress would then unreasonably exclude the pupil again. The pupil would go to the panel and be reinstated, which would have a devastating impact on the pupil concerned.

Nick Gibb: My hon. Friend makes a very good point. That pupil would not be getting the specialist help that they would need to address their behavioural problems.

Pat Glass: Looking at the underlying principles, if someone is incorrectly accused and suffers—or there is a maladministration resulting in injustice—surely natural justice requires that person be restored to their former position. If they are not, would the parents of children not go down the route of damages, and that some of those damages could be substantial?

Nick Gibb: The law and procedures are clear and fair. If there have been lax procedures in leading to the exclusion, or the head teacher was acting unreasonably, it will be referred back to the governing body. That is another group of reasonable people who will re-examine the issue, consider and decide, on the basis of the facts, whether to reinstate that pupil. An overriding principle is what is in the best interests of the school; that is what we are trying to deliver. We are trying to deliver a way of ensuring that our schools have much better standards of behaviour, so that all vulnerable children—and those not so vulnerable—are safe and happy in a safe and secure environment. That is what we are trying to achieve. In addition, we have introduced a huge number of safeguards to try to minimise any unfairness in the system.

Kevin Brennan: From what the Minister just said, is he introducing a new doctrine, that schools and public bodies should act in the best interests of the school and not in the best interests of the child, thereby undermining the paramountcy principle of the Children Act 1989?

Nick Gibb: Of course not. I am saying they have to take into account all these factors; they have to act in the best interests of the pupil in the school, of course they do. The head teacher, when making decisions and enforcing behaviour, has to act in the best interests of all the pupils in the school, to ensure that they have a safe environment. That was what Sally Coates described, when she said that there cannot be a situation such as the one to which she referred when the child comes back to the school. That is why we cannot have reinstatement. We have introduced a huge number of safeguards into the system, so that the governing body will reconsider whether to reinstate the child if required by the review panel. If it does reconsider and regard it as in the interests of the pupil to return to the school, it can so rule.

Meg Munn: I am struggling with the Minister’s argument that one child reinstated is one too many. It makes an automatic assumption that things are never going to go wrong. We have already had some real-life examples earlier today. I am also extremely puzzled how he can believe that a school that would wrongly exclude a child, could be one that would act in the best interests of all children. It seems pretty fundamental and easy to see that a school that does not look properly at the situation of a vulnerable child, and ends up excluding that child wrongly, is likely to be a school that is not meeting the needs of a great many of its children.

Nick Gibb: The hon. Lady makes a good point. It is the point that I was making earlier. If there is a head teacher who is acting unreasonably, the governing body will be aware of that and will see a pattern developing, and will have to take action. It is unlikely that a head teacher who is behaving unreasonably on those occasions would be acting well in relation to other parts of how the school is run. It is important that governing bodies take their responsibilities seriously in that regard.

Meg Munn: Of course it is important that governing bodies take their responsibilities seriously. Earlier we had a more informal conversation about human nature, and we know that it is often difficult for people to take up these issues. The Government are putting head teachers in an incredibly powerful position, something we do not do to other professionals. In fact, with other professionals, such as GPs, we have rowed back in recent years. They are putting them in an incredibly powerful position and then expecting essentially a group of lay people—governors are good people and many take their responsibilities very seriously—to challenge a powerful person.

Graham Stuart: It is their job.

Meg Munn: Of course, it is their job. But is not as easy as the Minister is making out. Having a process that would reinstate children when the decision has been wrong is fairer to children and gives greater accountability than the system that the hon. Gentleman is proposing.

Nick Gibb: The position of that reinstatement would bring us back to where we are now. We have a serious issue in this country that must be tackled and we are discussing one of many measures to solve it. By not allowing the panel to reinstate, we are helping to deliver higher standards of behaviour in our schools right across the board. We will be benefiting disproportionately those pupils who have vulnerabilities, care responsibilities, are looked-after children or who have special educational needs.
Under the system, the decision can be reviewed by a review panel of specialist people and experts. A child and parent can elect, if they wish, to have an SEN expert in attendance and to give advice at the panel hearing. If the panel believes that the decision was flawed in some way, it can ask the governing body to reconsider the decision or, if it were seriously flawed, it can demand that the governing body reconsiders the decision.
When reconsidering the decision, the governing body will have the benefit of all the evidence from the independent review panel, which may be new evidence and might influence its decision to reinstate. It might make a different decision from the one that it took initially in supporting the head teacher’s decision to exclude. Multiple layers of safeguard are built into the system to ensure and minimise human fallibility. There will always be human fallibility in the affairs of men and women, but we have to devise systems that minimise it as much as possible.
Having given the issue a lot of thought along with many other Ministers and officials over the months, I think that that such a provision is the best approach to being able to incorporate the principle of not having automatic reinstatement against the wishes of not only the head teacher, but the governors and the head teacher. It has to be their wish that the pupil is not reinstated. The decision is not just made by one man or one woman. We have combined that principle with the principle of justice and fairness so there will be a review panel.
There will be extra support for pupils with special educational needs from the panel expert. In addition, we have the direct route to the first-tier tribunal if there is a belief that the child is excluded because of their special educational needs or disabilities. Ultimately, there is the possibility of complaining to the Secretary of State. Taken as a whole, those measures have created under clause 4 a system that will deliver the Government’s quality objectives, as well as fairness to young people that is in their best interests and who need extra protection.
I turn now to amendment 36. I fully acknowledge the importance of regulations, and I can understand why the hon. Member for Cardiff West is interested in them. That is why a detailed policy statement on the regulations was made available to the Committee as long ago as 4.34 pm last Monday, which is a long time. The regulations will be extremely detailed, and we will be consulting widely on them. It would not therefore be efficient use of parliamentary time automatically to scrutinise them on the Floor of the House. Indeed, when exclusion regulations were laid in 2002 by the Labour party, they were not made under the affirmative resolution procedure, but there is always the possibility that hon. Members can pray against the regulations and thus make them subject to a debate.
Regulation-making powers currently exist for the exclusion process because they cover detailed procedures that it would be too complex to outline in the Bill. New regulations will establish independent review panels, and set out their procedures and powers. They will provide for the constitution of the new review panels, how they will operate and the procedure that they will follow. It will be broadly the same as for existing appeal panels. The main change to which I referred earlier is that parents will be able to request that an SEN expert be present at the review panel meeting when they believe that their child’s SEN were a factor in the exclusion.
If the worry of members of the Committee is in relation to the power to make regulations under subsection (5), they should be reassured by our detailed policy statement in which we have set out how we will use the power. The Government intend that it will be used to regulate and have set out the circumstances in which a panel, having heard a review, may decide to mark a pupil’s record to note the outcome of the review in cases when reinstatement is not the eventual outcome for the pupil. That may provide some form of redress for parents, and will ensure that the exclusion does not count towards the rule that, if a pupil has two exclusions, they and their parents lose the right to choose the next school.
The powers of the review panel will be different from those of independent appeal panels, and the differences are set out in the Bill. The new panels will no longer have the power to reinstate pupils, as I have said, but will be able to direct governing bodies to reconsider decisions that they consider to be unreasonable. Additionally, regulations will set out the circumstances in which the panel may direct an adjustment of the school budget share. We intend to regulate to provide for circumstances where the school’s decision has been considered unreasonable by the panel but the governing body refuses to reconsider.
I think I have answered all of the hon. Members’ questions. On the basis of those, perhaps too many, words, I ask the hon. Gentleman to withdraw the amendment.

Kevin Brennan: I thank the Minister for his full reply. He used exactly the right number of words in responding; he is too hard on himself.
Regarding amendment 35, which would empower the review panel to require reinstatement, I remain concerned about the procedure. There is something whiffy about it, to coin a phrase. I do not think that it will get any clearer or more coherent as debate about it goes on. I am not going to press the amendment to a vote in Committee because I want to cogitate a little further on some of the things that the Minister has said, and I want to think through the consequences. However, I remain seriously concerned that the process is problematic, despite the many hours of thought that the Minister, his colleagues, his officials and their lawyers have put into it, the many meetings that they have had and the many iterations that there have been of how it finally ended up in the Bill. I do not know whether Members have seen the film “Double Indemnity” with Edward G. Robinson. If someone has a man inside them telling them that there is something wrong with something, they should listen to him. We are not letting go of this one just yet, however, even though I am not pressing the amendment to a vote.
On amendment 36, given the importance of the clause, it is worth having the affirmative procedure. That would not involve the Floor of the House; the regulations can be gone through upstairs in Committee. It just means that they will not be slipped through without it being noticed, rather like some note at 4.34 in the afternoon suddenly emerging from somewhere. I would like to press amendment 36 to a Division, but I beg to ask leave to withdraw amendment 35.

Amendment, by leave, withdrawn.

Amendment proposed: 1, in clause4,page8,line42,at end insert—

Question put, That the amendment be made.

The Committee divided: Ayes 8, Noes 9.

Question accordingly negatived.

Meg Munn: I beg to move amendment 64, in clause4,page8,line42,at end insert—
This amendment is essentially about pupils’ participation in the school exclusion process. The amendment has three elements. The first would allow children to participate and give them a right to be heard. The second would allow children to appeal in their own right. The third would ensure that pupils are given all information in language that they can readily understand. That element is self-explanatory, so I do not intend to talk further about it. It supports the other two elements.
On children’s ability to participate, article 12 of the UN convention on the rights of the child states that Governments must
“assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child”
and must give those views
“due weight in accordance with the age and maturity of the child.”
As you may remember, Mr Williams, it was a Conservative Government who ratified that UN convention in 1991. Interestingly, that Government had clearly been moving in that direction for some time, as they passed the Children Act 1989, which made huge changes to how social workers in particular operated in relation to children and young people. I remember it clearly, having been a social worker at the time; I do not know whether you were practising at that point, Mr Williams. It was an important and fundamental change.
The 1989 Act not only changed how things happened at the time but has remained the bedrock for children’s work and children’s social care legislation ever since, and it put in place a requirement, which the UN Committee on the Rights of the Child wanted, for children’s needs to be solicited and considered in all care-related decisions, including any decision to remove a child from his or her family on child protection grounds, and decisions regarding placement in foster care, the development and review of care plans and visits with parents and family. Governments must start from the presumption that all children are capable of forming and expressing views, and it must be up to authorities to disprove that presumption. Simply listening to the child is insufficient; the child’s views must be considered seriously.
A fundamental change took place, and a lot of training was introduced to ensure that practitioners understood the importance of those principles. Over the years, that practice has become embedded, although not as well as we would like in many situations. Indeed, many of the tragedies that we see in child protection relate to the fact that children have not been spoken to separately, their views have not been listened to and their perspective has not been taken into account. However, the principle is there, and the legislation has subsequently been amended by other Governments, including the Labour Government, to improve the situation.
Participation is a fundamental right of the child under a convention to which this country is signed up. In 2008, the UN Committee on the Rights of the Child, in looking at the UK’s record, recommended that we ensure that such participation takes place. Its judgment was that the UK should ensure
“that children who are able to express their views have the right to appeal against their exclusion”.
That specifically relates to the amendment. Article 12 of the convention states that children should
“be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.”
I am not proposing anything unusual or strange, but something that Governments have been signed up to for some time.
Those are the rights of the child, but we should discuss whether they are sensible. I do not need to go over the issues that we have already spoken about, because hon. Members with more direct experience of exclusion panels than me have set out situations in which a brief discussion with a child might easily have led to what was happening to that child being found out.
There is not only the issue of the importance of talking to the child; there is the issue of fairness and justice. Does the child feel that they have been heard? Hon. Members should think back to when something happened to them as a child or a young adult that was unjustified, such as being picked out as the one who was talking in class when they were not—Members may never have had such an experience; you would never have been in that situation, Mr Williams, I am sure. For a child or young person to be put through a process in which they do not feel that they have had the opportunity to be properly listened to or represented can create a huge amount of frustration, and can add further to the problems that they are already experiencing as a result of that process.
I make this suggestion not only because we should be doing what the amendment suggests—it is clear that the UN took the view that the current situation is in breach of article 12—but because it is an efficacious way of proceeding. That is particularly the case if we want to bring up young people in a system in which they respect the processes, and in which they have an opportunity to be heard and have their views considered, regardless of whether they have influence over their situation. I entirely accept the Minister’s view, which we have discussed at length, about the importance of establishing the authority of teachers in schools. They, or parents in families, can listen and involve young people; that does not mean that they have to do exactly what the young person says. Listening and taking into account views is an important process in and of itself; it is not about removing authority.
I come back to my earlier point: we would question how well a school that did not take into account the individual needs of one child was meeting all the needs of other children. In my experience, the schools that have good discipline records and that deal well with children are those where children feel able to speak, put forward their concerns and be heard.
First, children should have a right to be heard in the exclusion process—not the right to make the decision, or override anyone else’s right, but to be part of the process. Secondly—the Minister dealt with this in response to my hon. Friend the Member for Walthamstow—the amendment would specifically introduce the right for a child to appeal on their own. Again, that is only reasonable and is in line with the principles set out in the Department for Education’s memorandum E 45—not the dermatological cream, but the memorandum. We are talking about a principle of procedural fairness and giving the individual a right to be heard.
The Minister said that only parents, or a child over the age of 18—they would, in fact, no longer be a child if they were over 18—would be able to appeal. That is a very narrow position to take. As young people get older, they have the ability to express their views and make decisions for themselves, and we should encourage young people to do that because it is part of the process of becoming an adult. That has been a matter for debate and discussion for years. It is some years—I cannot remember how long—since the Gillick judgment. We went around for years talking about a Gillick competent child. That judgment relates to the point that even though a young person is under the age of majority, they nevertheless have the right to make certain decisions about themselves. A young person could well have parents who are not prepared to take the steps to appeal but might feel passionately about the situation, believe that an injustice has been done and want to appeal. Again, in such a situation, it would be right for that young person to have that opportunity.
I shall make a final, wider point that we have dwelled on already. If we do not allow for any appeal, it is counter to natural justice. We should take that into account and allow young people a proper place in the process, so that they can be heard and positively contribute to the process. Such an approach will not make the situation in any way worse; providing the opportunity for the young person to put forward their point of view and be heard in a way that recognises that they have something to say can only be a positive thing. If a child gets to the end of the process and feels that they have not been listened to, it will feed into a huge sense of injustice that could lead to further problems. Although I do not have any specific examples from experience, we have certainly been given examples by organisations that have submitted evidence to the Committee. I hope that the Minister will look positively on the proposal.

Kevin Brennan: I rise briefly to support my hon. Friend the Member for Sheffield, Heeley on amendment 64. I understand that currently a pupil needs to be aged 18 to appeal against an exclusion. However, as you will be no doubt intimately aware, Mr Williams, that is not the case in every part of the United Kingdom. Under the Education (Pupil Exclusions and Appeals) (Maintained Schools) (Wales) Regulations 2003, regulation 2 allows a pupil aged 11 or over at the start of the school year in which they are excluded—in other words, from year 7 onwards—to appeal against exclusion.
It is perhaps timely that we reconsider the matter in the Bill, because there have been developments in recent years. It raises some interesting questions, as my hon. Friend has pointed out. I do not think that giving children and young people the right to exercise an appeal has resulted in a great breakdown of law an order in Wales—I have not noticed any particular problems in Caernarfon. It is therefore worth considering whether now is an appropriate time to look again at the issue.
Some young people who face exclusion might be living on their own at the age of 17 in independent accommodation. Are we seriously saying that such people should have no right whatever to appeal against an exclusion brought against them? As my hon. Friend has pointed out, what if they do not have particularly motivated or capable parents? Often, children with the kind of problems that lead to exclusion have parents who themselves are not particularly responsible. Such parents are highly unlikely to go through the process of launching an appeal, even if the pupil, student or young person—who might be aged 17 and living independently, or living at home in difficult circumstances—feels that there has been an injustice.
I know that the Minister sincerely gave his commitment to the looked-after children agenda, which has developed a cross-party consensus in recent years. Great progress has been made, although it has been hard progress all the way. I recognise that progress as a former Minister with responsibility for such matters. I worked hard to try to improve the situation for children in care, introducing legislation and implementing the “Care Matters: Time for Change” White Paper. I remind the Committee, however, that the agenda for children and young people in care—for which there was cross-party support—involved the local authority improving their parenting, improving their aspirations and trying to raise their ambitions, providing them with greater stability in their lives and education, and giving them a greater voice.
We believe that looked-after children might be subject to exclusion in the way that we have discussed, and that they are statistically more likely to be subject to exclusion than other groups. We are not, however, extending to them a voice in the form of an ability themselves to appeal if a local authority is not exercising its function as a responsible corporate parent in the way we would expect it to. The question of whether such children and young people should have an opportunity to appeal is, therefore, worthy of debate.
On that basis, I ask the Minister to respond and to consider my hon. Friend’s amendment. If he cannot accept it now perhaps he will give it further consideration, because we might want to return to the matter. At this stage, it is worth rethinking whether young people and children under the age of 18 should be able to appeal in their own right against an exclusion, particularly given the changes being made in the Bill.

Julie Hilling: I will make only a few brief comments on the amendment. The whole premise of the Bill is that the head teacher and the school are always right, which we know is not always true. We heard from my hon. Friend the Member for North West Durham about the cases of Peter and Lewis, in which justice was clearly not served within the school setting. There must be at least 60 more cases in which the school was not right in what it did, because reinstatement was ordered by an independent body. There were occasions, therefore, when the decision-making process was not right.
In natural justice, the accused have the right to defend themselves. If we do not accept that young people have a right to put their views forward, then we see them as purely a problem and not part of the solution. As someone who worked in informal education for a number of years, I would frequently hear young people’s side of what they considered was being done to them by the school. I heard only one side, and perhaps I would not have agreed with the young person if I had heard the other side. We have a responsibility as adults in society to listen to what young people have to say. They have a responsibility for their actions, but they have the right to be heard and to say, “This is what happened; this is why this has happened.”
The whole act of being expelled affects people’s futures enormously. Young people can be stigmatised for life. It is therefore a very serious act. In the past, some schools have perhaps not seen it as significant, which it can be, for a young person to carry that stigma. On being expelled, they like to talk about “exclusion”, but actually, the school has chucked them out and said, “You are no longer welcome and we have to find somewhere else for you to go.” It is a very serious event in a young person’s life. Given the difficulty they have in that period of transition—that time when they are perhaps out of school altogether—it is a very serious situation for young people to be in. As we know, the vast majority of young people that this happens to are disadvantaged.
If there is any justice in our society, it should include being just to young people and saying that they have a right to have a say, and we have a responsibility to hear them. To be honest, if the young person is wrong and what they are saying is not good, they will not win their appeal. However, they should be able to learn from a process in which they can say, “This is my side of the argument, but actually, my side is not one that everyone thinks was right.” The amendment is therefore important and I hope the Government will consider including it.

Stella Creasy: I rise partly to reiterate from a slightly different angle the points that my hon. Friend the Member for Bolton West made. I have worked in a voluntary capacity with many young people who have been excluded. The amendment is important because it is part of the process of getting young people to recognise that their behaviour is unacceptable. One of the challenges that we often face in working with young people with difficult backgrounds and challenging behaviour is finding opportunities for them to take responsibility directly for their behaviour and to see how that impacts on their lives.
I hope the Minister will consider the amendment and realise that many of us are concerned about exclusions. Because an exclusion has such a dramatic impact on a young person, it is important that they have a role to play in acknowledging inappropriate behaviour and what has happened to them. It is important that they have the opportunity to put their case, but also to recognise the situation and to take responsibility directly. We fear that if we delegate that role solely to the parents, there is a danger that a young person, who, for a variety of reasons, might not have a very constructive relationship with their parent, will not begin the process of having their behaviour challenged and accepting responsibility for their own conduct. Those of us who have worked with young people understand and value the opportunities—big and small—to have such relationships with them and to challenge them in that way. If the Minister does not accept the amendment, I hope he will at least consider how he can encourage young people to lead each other into better forms of behaviour, even in the context of an exclusion process.

Nick Gibb: Amendment 64 would require head teachers, governing bodies, local authorities and review panels to ensure that excluded pupils are more formally involved throughout the exclusions process through being able to make representations, to appeal and to have access to information. I have some sympathy for the principle that the pupil’s views should be heard during the process, and I thought that the debate was very interesting and informed. However, I still believe that the amendment would not be the most appropriate way to achieve that. I want to clarify that we are talking about pupils under the age of 18. Pupils over the age of 18 already have the same rights as parents in terms of making representations to the governing body and appealing to an appeals panel. We will ensure that pupils who are 18 have similar rights to apply to a review panel for a review, and the regulation-making powers in the clause will do just that.
I believe that sufficient safeguards are already in place to ensure that pupils under 18 are consulted and able to participate in the exclusion process. The Department’s current guidance on exclusions gives significant weight to pupils’ participation, and where appropriate, it encourages pupils to participate at all stages of the exclusions process, subject to their age and understanding. For example, before excluding a pupil, the head teacher should inform them of the reason for the intended exclusion—and, if it is for a fixed period, the length of that exclusion—and give that pupil a chance to have their say.
I will quote briefly from the Department’s 2008 guidance, which the hon. Member for Cardiff West undoubtedly had a say in drafting:
“The pupil’s participation in decisions related to their exclusion is not set out in primary legislation or regulations. Nevertheless the child or young person should be invited and encouraged to state their case at all stages of the exclusions process.”
The section on appeal panels states:
“An excluded pupil under the age of 18 should be encouraged to attend the hearing and to speak on his or her own behalf, if he or she wishes to do so and subject to their age and understanding.”
I should perhaps highlight the use of the verb “encouraged” in the two sections that I have quoted. We want schools actively to seek the views of the pupil who is being excluded. That guidance will need to be revised in the light of the changes proposed in this Bill, but we will retain messages of that sort and the use of the word “encouraged.” It is not a matter of tolerating young people’s participation; their participation should actively be sought wherever appropriate, and I agree with the way the that previous Administration crafted that guidance.
It is right for a pupil to have his or her say, and for his or her voice to be heard. That is rather different, however, from making formal representations or applying to the review panel for a review of an exclusion. For that formal role, it is appropriate for the pupil’s parent to have the right to make representations or apply for a review. Parents are the guardians of their children’s interests. They have legal responsibilities for their children in school, including ensuring their attendance, and they should decide whether or not to make representations or seek a review.

Mark Hendrick: I am sure that in 99.9% of cases what I am about to say is not true, but I have come across instances of parents who have told their children that it is not worth going to school and, in some cases, that education is a waste of time because they will not get a job at the end. There are instances of parents who do not have the best interests of their children at heart, and of those who cannot get out of bed in the morning. In such cases, the eldest children prepare the younger ones for school, as well as going to school themselves. Parents are not always the best people to help. Sometimes children are the best people to speak up for themselves.

Nick Gibb: The hon. Gentleman makes a general point, and the age involved is not always 18. For example, a young person in England has the right to appeal over sixth-form admissions at age 16, which would be more applicable to the hon. Gentleman’s example. It is not a pure science and I do not want to sound too negative in what I am saying.

Mark Hendrick: I am talking about a case I came across where a 10-year-old was preparing breakfast for and dressing his younger brother and sister. There have been other cases where children are sneaking out of the house because their parents do not particularly want them to go to school.

Nick Gibb: I accept the point, but it does not relate directly to this issue. There are other ages in legislation that relate to other parts of the education system and other issues, or to other parts of the UK. In Wales, as the hon. Member for Cardiff West pointed out, the regulation covering this issue concerns pupils from age 11.
I do not want to sound too negative, however, and I want to move towards the approach suggested by the hon. Member for Preston and other hon. Members. We are prepared to look into how such an approach could work because I understand the point being made. In the special educational needs and disability Green Paper, “Support and Aspiration”, which was published last week and to which we have all referred many times, we describe plans to run pilots in two or three areas within which children would have a right of appeal to the first-tier tribunal, the SENDIST, for all tribunal hearings. The pilots will test whether the right to appeal is something that children would use, the best way to handle those appeals and the cost implications of such a change. We can learn from those pilots and that can inform our future policies in other areas, such as review panels. If that works well, it could in time be extended to other regions and possibly to other areas of education practice. I am not making any commitments in the course of the debate—because of the need to modify primary legislation, the trials for the first-tier tribunals cannot begin until 2012-13 at the earliest.
The legislative approach that we are taking in clause 4 allows us to be flexible in the longer term. The regulation-making powers contained here would allow us to place requirements on governing bodies and/or review panels were we to wish to do so at a later stage. I am not persuaded that we should extend formal rights to pupils on that question. We will keep, in future versions of guidance, our expectation that a pupil’s voice should be heard, but the legal right to make formal representations, or seek a review, should remain with the parent.

Kevin Brennan: Just to be clear on that point, would it be possible in regulation at a later date, if the Government were so minded, to achieve, for example, the ability for a student under the age of 18 to appeal? In other words, it would not require further primary legislation.

Nick Gibb: Yes, the regulation-making powers contained here would allow us to place requirements on governing bodies and review panels were we to wish to do so at some stage. So the answer to the hon. Gentleman’s question is yes.

Dan Rogerson: The Minister is going a long way to reassuring people who may read our deliberations later on about the Government’s intention in that regard. I cast my mind back to my time in sixth form. One of my friends had been in the care system in a local authority in another part of the country. He moved down to Cornwall with foster parents and then left their care at 16. He ended up living on his own, independently, in a mobile home while he was taking his A-levels—an example similar to one mentioned by the hon. Member for Cardiff West. He was absolutely fine and was given support by friends. The care system let him down and I think the local authorities let him down, but he went through. If, however, he had had a breakdown in his relationship with a member of staff that had led to these sorts of proceedings, would that be an example that the Minister would consider in his deliberations on the guidelines that the Government may issue? Someone like that, who did not have a parent or local authority acting for them, might then have the ability to trigger a review. Is that something that he might consider in future?

Nick Gibb: My hon. Friend raises an important point. I will consider that issue, which was also raised by the hon. Member for Cardiff West in a different form. It is an important point and I will think about it.
Given what we have in guidance, the trials to be conducted around the first-tier tribunal and the fact that the legislative door is left open by our regulation-making powers, I urge hon. Members to withdraw the amendment.

Meg Munn: This has been a helpful debate that has explored the important issues. I welcome the spirit in which the Minister has responded to the debate and I welcome the fact that he confirmed that he wants to continue with the involvement of young people, as is currently in guidance, when the guidance is revised. I urge him to consider further whether this might be a time to consider lowering the age, as he himself has identified. There are other provisions in which 16 is the appropriate age and, given the number of situations where one can make decisions at 16, now might be the time to decide this as well. I am perfectly satisfied, however, that the Minister has understood all the points we have made and therefore I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendment proposed: 36, in clause4,page8,line43,after ‘regulations’, insert ‘made by affirmative resolution’.—(Kevin Brennan.)

Question put, That the amendment be made.

The Committee divided: Ayes 8, Noes 10.

Question accordingly negatived.

Kevin Brennan: I beg to move amendment 37, in clause4,page9,line8,at end insert—

Hywel Williams: With this it will be convenient to discuss amendment 38, in clause4,page9,line20,at end insert—
‘, including arrangements for the future education of the excluded child’.
Amendment 30, in clause4,page9,line20,at end insert—

Kevin Brennan: Amendment 37 seeks to clarify the range, funding and use of the fine, or the “financial adjustment” or “financial penalty”—whatever we are going to call it; I think it is a fine—that a school will be required to pay should the review panel consider, in the light of the principles applicable on an application for judicial review, that the decision of the responsible body was flawed. The amendment also probes when such an adjustment may be ordered.
The Minister has given us some idea of the range and size of the possible fine. Organisations such as the Alliance for Inclusive Education have told us of their concerns. The alliance says that the clause
“gives an incentive to schools to consider whether it is more cost effective to exclude the pupil and face a reduction in school budget than to provide for the pupil’s needs within the school”.
It also says that it fears
“this may have a knock-on effect upon other children’s support, which may increase their likelihood of being excluded in the future.”
We therefore need an assurance from the Minister that schools will not be able to use funding intended for other purposes, such as that allocated to a school for special education needs, to pay any such fine and, as we heard earlier, we also need more clarity about what will happen with the pupil premium. I seek assurances that the payment of fines will not be detrimental to disadvantaged children or those with special educational needs.
Will the Minister confirm that it is the local authority that will receive the fine, and explain what will happen to the money when it gets there? Do the Government intend there to be any limits on what the recipient of the fine can do with the money? Do they intend that it should bear a direct relationship to the funding of the education of the excluded pupil?
Finally, my concern is that the Bill gives schools legal powers to act unreasonably, as long as they pay the fine. It says that when the review panel
“considers that the decision of the responsible body was flawed when considered in the light of the principles applicable on an application for judicial review”,
it may quash the decision of the responsible body and direct it to reconsider the matter. The panel may also order an adjustment of the school’s budget share for a funding period. Alternatively, in plain English, the Bill says that where a review panel finds that the decision was unreasonable the school does not have to change its decision and instead can get away with paying a fine. Meanwhile, the child who was found by the review panel to have been excluded by means of a flawed decision remains excluded. The Bill is introducing a funny kind of justice.
The amendment is intended to clarify several different aspects of the implementation and impact of the proposed fine, and to probe whether it was the Minister’s intention to give school head teachers and governing bodies the legal right to act unreasonably as long as they are prepared to pay to do so. Most teachers probably tell their pupils that to act unreasonably is irresponsible, and that is probably right. In the Bill, the head teacher and the governors are referred to as “the responsible body”. So what the clause is doing is allowing “the responsible body” to act irresponsibly. That seems to be the Minister’s intention, albeit with the consequence that the head teacher and governors may have to pay a fine, which of course the Minister is not allowed to call a fine. He has to use the term “financial penalty”, even though the Chambers dictionary defines a fine as:
“an amount of money to be paid as a penalty”.
So we have probably skewered that argument—it is a fine. A “fine” and a “financial penalty” are one and the same thing. Unless the Minister can give me an example of where a “financial penalty” is not a fine and can explain the difference between a “fine” and a “financial penalty”, we should just settle on that nomenclature of “fine” for the remainder of our deliberations on the Bill.

Mark Hendrick: Does my hon. Friend not think it bizarre that the Minister should compare a child who is wrongfully expelled and suffers the indignity and loss of esteem resulting from that expulsion—as well as possible harm to his future education as a result of having the stigma of being expelled carried with him to another school—with the theft of a television and the fact that the thief does not have to replace the television? Does he not think that that comparison is ridiculous?

Kevin Brennan: I do not find the Minister in any way bizarre or ridiculous. I should make that clear to the Committee.

Iain Wright: Division. [ Laughter. ]

Kevin Brennan: There may not be universal assent for that opinion, including from my hon. Friend the Member for Hartlepool who is speaking from a sedentary position, but I never find the Minister to be in any way ridiculous or bizarre. I understand where he is coming from and what his intention is. As I have said at various stages of our deliberations, I am keen that we promote a consensus on the need for good behaviour and good discipline in our schools, and on the requirements for that good behaviour and discipline.
However, I am trying to avoid a situation in which we make bad law, which I think is what my hon. Friend the Member for Preston is getting at, and end up regretting that bad law in years to come because of the potential consequences in terms of legal challenges and so on. The analogy that the Minister drew is not entirely appropriate. The point that he was making was that the criminal would not have to return the television set if they stole it even though they had been found guilty of a criminal offence. We are not talking about a criminal offence here, obviously. We are talking about the finding, after careful consideration, of a review panel that a school had acted unreasonably in excluding a pupil. However, the consequence of the panel establishing that the school had acted unreasonably, quashing the original decision and recommending reinstatement of the pupil will be that the head teacher and governors are free to reject the panel’s reasonable finding, which was based on the same principles as judicial review. That is a peculiar and novel innovation in the Bill and therefore I am sure that it will be the subject of more discussion as we go through the parliamentary process.
Amendment 38 would enable the review panel to make a recommendation about arrangements for the future education provision of the excluded child. In tabling the amendment, we seek to probe the Minister’s policies on the future education of a child once he or she has been excluded. The amendment complements amendment 30, which follows, in seeking to probe the Government’s intentions around a new approach to managing exclusions, whereby schools will be held accountable for the pupils they exclude.
I ask the Minister what he intends to happen when children are excluded from schools, including how suitable alternative provision will be ensured, and by whom. Does he intend that pupils who are excluded from schools should be automatically sent to pupil referral units—I believe that he said earlier that that was not the case, but that seems to be the approach that is envisaged in some of the language in the Bill—or that serious arrangements will be made to ensure that, where appropriate, they can be found a place in another mainstream school? If he intends that arrangements will be made to secure an excluded pupil a place at another mainstream school, what arrangements will be made? Which body will make such arrangements should clause 6, which comes later, stand part of the Bill? In summary, the amendment is intended to probe the Government’s intentions on future provision for a pupil who is excluded.
The third amendment in this group is amendment 30, which seeks to probe the Government’s intentions set out in the White Paper on a new approach to managing exclusions, whereby schools will be held accountable for the pupils they exclude. Section 3.38 of the White Paper states that the Government will pilot a new approach to permanent exclusions where schools have the power, money and responsibility to secure alternative provision for excluded pupils. I shall not quote at length from the White Paper—

James Duddridge: Shame!

Kevin Brennan: The Government Whip wants me to do so, but I shall resist his request in the interest of hearing what the Minister has to say in response to the amendments.
In evidence to the Select Committee for its February 2011 report, which has been referred to many times during these debates, John Dunford, who colleagues will know is the former general secretary of the Association of School and College Leaders, highlighted the drawbacks of an approach that puts increased pressure on schools to avoid exclusion at all costs. He stated that
“at a time of difficult funding…it would be very difficult for schools to afford good provision on an individual basis for excluded children full time”.
The Select Committee report states:
“The Minister for Schools explained that the new Pupil Premium would help schools buy services for individual pupils”,
but goes on to state that Dr Dunford observed that the cost of a placement in a pupil referral unit was £15,000, which is much more than the £430 per pupil that schools will get through the pupil premium.
The report recommended that the Government
“should clarify how schools will be funded to meet the total costs of providing full time provision for permanently excluded pupils, whether through the Pupil Premium or other funding streams.”
Will the Minister tell the Committee about the progress of work on the pilots, and the Government’s policy intentions? Will he clarify whether provision such as this amendment would be needed for the pilots to go ahead?

Nick Gibb: Our aim in introducing the provisions is to create a simple system that is fair to pupils and that allows teachers and head teachers to maintain good discipline for the benefit of all pupils and staff. The comments of the hon. Member for Cardiff West remind me of when I saw Simon and Garfunkel in concert. Art Garfunkel said that the reason for the row between him and Paul Simon was that he always wanted to call the group Garfunkel and Simon, and Paul Simon’s riposte was that he should do so. I say to the hon. Gentleman that if he wants to call this a fine, he should do so, but it is a penalty. In fact, the legislation refers to it as an adjustment of the school’s budget share.
The penalty should be set high enough to represent a disincentive, but not so high as to seem unreasonable. As we set out in the policy statement circulated to the Committee, we intend for the amount to be covered in regulations, which will set a flat-rate figure on which we will consult. As I have said, we are minded to use a figure of £4,000, which broadly reflects the annual value of the age-weighted pupil unit.
I reassure hon. Members that I gave full consideration to the possibility that a budget adjustment might be set to cover the additional costs incurred by the new school or provider of meeting the excluded child’s needs, but there are difficulties with that approach. It would require the independent review panel either to meet a second time to assess the child’s needs and the costs of meeting them and set out how and when the financial penalty would be used, or to go through that cost-assessment exercise before the governing body reconsidered the case, which would be a waste of resource if the governing body decided on reconsideration to reinstate the child. That process would be more bureaucratic and time-consuming than the current system.
We would also have to cap the sum. If not, a school that wrongfully excluded a year 7 pupil could find itself committed to funding up to five years’ support, and there would be no incentive for the local authority or the new provider to seek value for money, as the excluding school would have an open-ended commitment. The system would also need a complex accountability mechanism to ensure that the money was spent on an individual child or on support from which he or she directly benefited. We wanted an approach that was fair and straightforward.
We intend the regulations to provide that the money should go towards the costs to the local authority of alternative provision. If the pupil moves swiftly to another school, some or all of the funding could be used to support the receiving school’s provision for the pupil. We will consult on the details of these arrangements during consultation on the draft regulations.

Stella Creasy: Will the Minister talk us through what he envisages will happen if a child is excluded multiple times from several different schools? What will happen to the financial responsibilities of schools further down the line? How far back might the process go? We know that some children experience several exclusions.

Nick Gibb: It is a one-off payment. The money will go to the local authority, and it will be up to the local authority how to spend it. It is more likely than not that it will go to the new school. If the child leaves that school, the pupil funding will go with them to the next school, but there will not be another penalty, unless the child is wrongly excluded from that school as well.

Stella Creasy: Does the Minister have a time limit in mind? For example, if a child with particularly challenging behaviour is taken in by a new school, but it quickly becomes clear that that is not the appropriate school and they experience exclusion again, does he have in mind any time lag for that process of fines? Where might the money be allocated, and what might it support?

Nick Gibb: I think that the hon. Lady is confusing our deliberations on how we would calculate the penalty with what was decided. In the end, it was decided that the penalty would be a one-off figure of about £4,000—although we will consult on that—and not an open-ended compensation for the child’s future education in alternative provision.

Stella Creasy: I appreciate that it is late; perhaps I am not explaining myself clearly. If the one-off payment is given to the new school, and the young person is then removed from the new school, is there a time limit to determine whether the funding would be allocated to the old school or the new school?

Nick Gibb: That will be a matter for the local authority. The money will go to the local authority, and it will be up to the local authority to disburse it as it sees fit. If the local authority wants a bit of it back to pass on to the new school, that will be up to the local authority in discussions with the schools. The hon. Lady is trying to predict all kinds of future circumstances. Again, it will be for the local authority to decide.
Separately from the financial penalty, the age-weighted pupil unit funding sum will continue to be transferred with every excluded pupil. I should also address the position regarding the pupil premium, which came up during a previous sitting. The intention is that from 2012-13, in all cases of permanent exclusion, the age-weighted pupil unit funding and the pupil premium figure, if relevant to the child, will transfer to the receiving school, as schools accepting excluded pupils need funds to educate those pupils. If a financial penalty is set by the panel and the budget share of a school is reduced, it is for the school to decide what adjustments it makes to its planned spending. The hon. Member for Cardiff West asked what happens to it and wanted to be sure that the school would not be able to use other funding to pay the fine. Head teachers are best placed to make decisions about that and we would not, therefore, want to prescribe how they manage it. An important exception, however, is any special educational needs funding that follows a statement. It cannot be used as a result of a reduction in the school’s budget share. The pupil premium is a separate grant and is not part of the school’s budget share. As such, the financial penalty cannot be taken from any pupil premium that the school has received.
We must remember that governing bodies will be well aware that, if their decision is quashed by a review panel, they could become involved in the time-consuming, lengthy and costly process of judicial review if they decide not to reinstate a pupil. Importantly, however, I believe that it is right that they have the final decision on the matter. For the same reason, I do not think that heads will exclude unfairly if they have calculated that they are prepared to pay the price. We trust head teachers to use exclusion as a last resort.
I understand the sentiments behind amendment 38. It is, of course, extremely important for excluded pupils to pursue their education and have the opportunity to secure meaningful qualifications. Arrangements for the education of permanently excluded pupils are already covered in legislation. That is why it is important to diversify the alternative provision sector—schools and local authorities need a wide range of good provision from which to choose in order to meet their pupils’ needs. We will use the planned trials of our new approach to exclusion to inform future legislation, which I will discuss in more detail when I speak to amendment 30 in a moment. Therefore, I do not think it would be sensible at this time to change the existing duties on schools and local authorities to provide alternative provision after the sixth day of an exclusion. I therefore ask the hon. Gentleman not to press his amendment to a vote.
Amendment 30 points in a direction that we may well wish to take, but we believe that it would be premature to legislate at this stage. We said in last year’s White Paper that we would want schools to take responsibility for the alternative provision for and the attainments of pupils whom they excluded. Head teachers must retain the authority to exclude pupils whose behaviour is violent, threatening or persistently disruptive. We do not want review panels to undermine the authority of heads by ordering the reinstatement of pupils. We want to balance that authority with clear responsibility for both the quality of education that excluded pupils receive and what they achieve in that alternative education.
Schools would be free to exclude pupils, but would be responsible for finding and funding alternative provision for them. Schools could work with other schools or buy places from the local authority, colleges or the voluntary sector. Some of the funding currently retained by local authorities for alternative provision would be delegated to schools for that purpose. One of the issues that we need to investigate in the trial is the proportion of funding to be delegated—if authorities are to retain responsibility for alternative provision—and how it can be most fairly allocated. I believe that schools may wish to invest much of that funding in early intervention to tackle poor behaviour before exclusion becomes necessary.
That is the approach that we set out in our White Paper, but discussions with head teachers have convinced us that we should not rush into legislation on this. A number of practical issues need to be identified and tackled in relation to, for example, funding, the availability of suitable provision, transition from primary to secondary, and perverse incentives that might dissuade schools from accepting pupils who might be difficult or challenging. More than 50 local authorities have expressed an interest in taking part, which should enable us to identify and work through all the relevant issues with 10 or 12 of them.
I think that I have covered most, if not all, of the issues raised by hon. Members, and, on that basis, I hope that the hon. Gentleman will withdraw his amendment.

Kevin Brennan: The Minister calls the final financial penalty, or financial adjustment, more than one thing in his document, so I think it is fair that I do the same. He kindly said that I should call it whatever I want and told the story of Garfunkel and Simon. In years to come, we may still disagree about exactly what we should call this final financial penalty. It is rather like another duo, Eric Sykes and Bob Monkhouse, who did not speak to each other for 40 years. When they finally found themselves in a television studio make-up room, Bob Monkhouse turned to Eric Sykes and said, “We haven’t talked to each other for 40 years. Can you remember what the original argument was about?” Eric Sykes replied, “No, but it’s too late to change now.” I think that we have reached that stage with the fine or financial penalty.
Given the Minister’s comments, I shall seek the Committee’s leave to withdraw the amendment. I am grateful for his clarification on amendment 30 and his general commitment to move in that direction. He is right say that it should be done at a sustainable pace and with proper consultation with head teachers, school governing bodies and local authorities, although I remain sceptical about the business of fining organisations by giving them permission to act irresponsibly. However, in the interests of making progress I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Kevin Brennan: I beg to move amendment 31, in clause4,page9,line43,leave out ‘may’ and insert ‘must’.

Hywel Williams: With this it will be convenient to discuss amendment 32, in clause4,page9,line45,leave out
‘or a description of Academy’.

Kevin Brennan: The amendment is intended to probe the Government on whether they intend the clause to apply to academies, or to what the Bill calls “a description of Academy.” It also seeks to discover what is meant by that phrase. The Bill states:
“Regulations may make provision for this section and for regulations made under this section to apply, with prescribed modifications, in relation to Academies or a description of Academy.”
The National Children’s Bureau tells us that it continues to be concerned about the appeals process as it applies to academies, as they lie outside the review and the appeal panel process. It states:
“The Academy Trust shall make arrangements for enabling appeals against exclusion…in accordance with the functions assigned to the Local Authority”.
The NASUWT also says that the application of these provisions to academies should not be at the discretion of the Secretary of State, but that it should be stated in the Bill. On exclusions, we believe that there should be absolute parity between academies and other schools.

Sitting suspended for a Division in the House.

On resuming—

Kevin Brennan: Before the Division in the House, I was explaining that amendments 31 and 32 were tabled to ensure that the Government’s intentions under the clause towards academies are absolutely clear. I outlined the views of various groups that felt that they should be clear, and I went on to say that there should be parity between academies and other state schools. The intention of the amendments is to probe the Government on their intentions towards such matters.

John Hayes: It is good to be performing my duty again. I am mindful of the shadow Minister’s indulgence and generosity, and I will attempt to be neither bizarre nor to promote ridicule, none the less to be idiosyncratic to the point of eclecticism and, in that spirit, to be reasonably concise. From our first days in office, the Government have given priority to the academies programme to ensure that more schools can enjoy the autonomy that it brings, with the aim of raising standards. That is entirely consistent with the previous Government’s view that academies are vital to increasing diversity and raising standards. I have endless quotes from countless former Ministers to that effect, but I will not test the Committee’s patience by reading them out at length.
Academy status has always been based on an understanding that the permissive quality of such schools—the move away from a one-size-fits-all model—is essential to creating the additional capacity to innovate, which lies at the heart of the academy programme. I shall deal with matters briefly. I am happy to confirm that we intend to apply the provisions and regulations to academy schools, and that is what the hon. Member for Cardiff West wishes to determine. It is clear that they must have arrangements that mirror those for maintained schools and that they will also be subject to financial penalties that the review panel may impose on a school. I want to be absolutely categorical about that.
The hon. Gentleman will press me on why, in that case, the Bill uses the word “may”, rather than the word “must”. As he mentioned earlier in our scrutiny, that is something that we often debate when considering a Bill so closely, with the kind of vigour and diligence that is personified by the members of the Committee.
The word “may” is used not to offer a way out to academies or to exempt them from the financial penalties, as I have already said, but to allow us to deal with the complexities of legislation that may arise, particularly as we are establishing new categories of academy elsewhere in the Bill. The application of existing legislation to those new categories will be a complex matter, involving the law on schools, academies and pupil referral units.
Although that is rather technical, we have been advised that using “must” here would commit us to making regulations on academies or the description of academy for all our provisions, including what is in the Bill and what will be in the regulations made under the clause. We were advised that it would not be appropriate to take that kind of inflexible approach. We prefer the flexibility provided by the clause as drafted, while committing to make regulations to ensure that academies are subject to provisions equivalent to those for maintained schools. That will be a reasonably complicated area in applying and disapplying legislation on academies. Regulations under the clause have not yet been made.
The “may” in the wording of the clause, which amendment 31 seeks to change, will allow us to deal with any technical issue that may arise in the taking the proposal forward, in how the provisions will apply to academies. For the same reason, we need to distinguish the new types of academies by including “a description” of academies, which amendment 32 seeks to remove. For example, while arrangements for academies mirror those for maintained schools, the new categories of 16-to-19 and alternative provision academies, to be established under clause 51, which we will debate in due course, might be in a different position because of the students they deal with. Therefore, the procedures and penalties may need to be different in turn and in kind.
I reassure the Committee again that we will make regulations as needed to ensure that all relevant provisions are applied to all categories of academy wherever appropriate. There is certainly no intention to exempt academies from the provisions. With those reassurances, delivered in—I think—a record short time, I urge the hon. Gentleman to withdraw the amendment.

Kevin Brennan: It may be a record for the Minister, but I do not think that it is a world record for delivering a speech in Committee. However, I congratulate him on probably completing that speech in less time than it took Roger Bannister to run a mile.
I take it from the Minister’s comments that the word “academies” is insufficient to describe the new forms of academy that are in the Bill and that the phrase “description of academy”—I can see nods from knowledgeable sources close to us—relates to the new forms of academy. That explains the point that I was trying to tease out from him in the amendment. He has pleaded for mercy on the “may” and “must” question because of the complexity of the issue, and I am prepared to give him the benefit of the doubt given that he gave us a categorical assurance that the Government intend to ensure that the provisions apply to all forms of academy, but that he wants to have some leeway and not have his hands tied by that word in writing the regulations. Taking him at his word that he is committed to that, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question put forthwith (Standing Orders Nos. 68 and 89), That the clause stand part of the Bill.

Question agreed to.

Clause 4 accordingly ordered to stand part of the Bill.

Ordered, That further consideration be now adjourned. —(Mr Duddridge.)

Adjourned till Thursday 17 March at Nine o’clock.